In State of Exception (2005), Agamben advances three theses. 1) The modern state of exception, a legal institution rooted in the democratic-revolutionary tradition, has gradually become the paradigmatic form of government in the twentieth century. The state of exception is a legal technical term which refers to the “suspension of the juridical order” undertaken to protect the it from internal and/or external threats (4). 2) As an expression of a violent process through which the law, “by means of its own suspension,” attempts to ensnare life-itself within the juridical order, the institutionalization of the state of exception is biopolitically significant (3). 3) The attempt to ensnare life, a defining characteristic of the juridico-biopolitical-machine, is bound up with a counter-movement (pure means) the objective of which is to forge the conditions of possibility for a realm of human activity that is totally external to the law. It attempts to de-legitimize law’s reign over life by exposing its secret relation to violence (87).

The following summary is not faithful to the chronological order of the book. Rather, it first presents Agamben’s theory of the state of exception (Chapters 1, 2 and 4) and then presents his genealogical investigation of it which traces the phenomenon from its origins in the Roman Republic through to the present day (Chapters 3, 5 and 6).

Terminology:

Chapter 1 “The State of Exception as a Paradigm of Government,” begins  with the observation that public law lacks an adequate theory of the state of exception (1). Treating it as quaestio facti (in the Kantian sense of a debate over its conceptualization within legal theory), modern scholars have conceptualized the phenomenon using terms (i.e., emergency decrees, state of siege, martial law, emergency powers etc.,) that fictitiously characterize it as a “special kind of law.”  Two normative frameworks dominate the Western scholarship on the phenomenon. The first frames the phenomenon as a juridical phenomenon and thus argues that it ought to be regulated through law. The second treats it as an extra-juridical phenomenon and thus argues that it ought not be subject to legal regulation (10). These frameworks correspond with the particular practices of some Western nation-states it. While some approach it as a juridical phenomenon and regulate the state of exception through various legal and constitutional frameworks1, others approach it as an extra-juridical phenomenon and authorize unbridled executive power during the state of exception2  (10).

Both frameworks appear at odds with each other.  The former asserts “that law must coincide with the norm” (11). The latter holds that “the sphere of law exceeds the norm” (ibid.). Yet, both frameworks are actually quite similar. Each denies the possibility “of a sphere of human action that is entirely removed from law” (11). What is at stake in both frameworks, therefore, “is the question of the juridical significance of a sphere of action that is in itself extrajuridical” (11). These frameworks are also inadequate because they imply a topological structure–i.e., inside/outside–which neither accounts for necessity emergency or the state of exception. “If the state of exception’s characteristic property is a (total or partial) suspension of the juridical order, how can such a suspension still be contained within it [the juridical order]” (23). If the juridical order provides for its own suspension then the law is not, strictly speaking, suspended although it presents itself as such3. Likewise, “if the state of exception is instead only a de facto situation and is as such unrelated or contrary to law, how is it possible for the order to contain a lacuna precisely where the decisive situation is concerned” (23). “In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition and the zone of the anomie that it establishes is not (or at least claims not to be) unrelated to the juridical order […] the very limit of the juridical order is at issue” (23).

In the final portion of Chapter 1, Agamben attempts to flesh out his conceptualization of the state of exception through a history of the inclusion of the state of necessity in the juridical order of the modern age (24).

The first move to this end is to criticize the classical reduction of theory of the state of exception to the theory of the state of necessity (i.e., status necessitatis). Drawing on the writings of Thomas (among others), Agamben observes the dialectical relation between necessity and exception. Thomas’s assertion regarding the sovereign’s power to grant dispensation from the law in times of emergency, for example, illustrates how a judgement concerning the existence of a state of necessity functions to legitimize the sovereign’s decision to suspend the juridical order as means to overcome the emergency. Agamben, however, refutes Thomas’ position that necessity is the foundation of the exception. “The ultimate ground of the exception here is not necessity but the principle according to which ‘every law is obtained for the common well-being of men, and only for this does it have the force and reason of law; if it fails in this regard, it has no capacity to bind” (25).

Agamben’s second move is to highlight the aporetic character of the modern view that necessity is foundation of law which emerged after the 1789 decree of the French constituent assembly that distinguished between a “state of peace” and a “state of siege”(28). The example of revolution, Agamben claims, highlights that necessity can only be framed as an anti-juridical phenomenon when viewed in relation to the “positive law of the state against which it is directed” (Romano, 1983: 224) (Agamben, 28). Consequently,  necessity ought to be conceptualized:  “as an ambiguous and uncertain zone in which de facto proceedings, which are themselves extra- or anti-juridical, pass over into law, and juridical norms blur with mere fact–that is, a threshold where fact and law seem to be undecidable” (29). Necessity is undecidable because it although a state of exception can create the conditions for the law’s application and/or its suspension or obliteration (29). Since this outcome is unpredictable, it is therefore undecideable whether necessity is the foundation of law, or the foundation of law’s undoing4.

Finally, Agamben points to the aporias that  arises out of the attempt to define necessity as an objective situation (29). The concept of necessity, Agamben argues (citing Balladore-Pallieri) is wholly subjective and dependent upon the particular objective or end sought (30). The recourse to necessity, whether to justify the suspension of the norm in order to preserve the existing constitutional order or proclaim the need of a new norm that destroys it,  “entails a moral or political (or, in any case, extra-juridical) evaluation, by which  the juridical order is judged and is held to be worthy of preservation or strengthening even at the price of its possible violation” (1970: 168) (From Agamben, 30). In either case, the principle of necessity reveals the its revolutionary character of the emergency.

In Chapter 2, “Force of Law Without Law”, Agamben critically appraises Schmitt’s theory theory of state of exception/sovereignty in order to develop his conception of the state of exception as an ambiguous zone of indistinction connected to the juridical order. In “Political Theology” (1922), building off earlier conceptualizations of “commissarial dictatorship” and “sovereign dictatorship”, Schmitt plays off the distinction between norm (Norm) and decision (Entscheidung and Dezision) in order to annex the state of exception to the juridical order via the figure of the sovereign, the entity defined by virtue of their unique prerogative to decide the state of exception. Because the sovereign decision concerns the suspension of the norm, it functions to chain the state of exception to the juridical order by constituting the sovereign in position outside of the normally valid juridical order to which it belongs by virtue of its authority to decide on the state of exception5 (35). Noting how Schmitt’s theory of the exception can only advance itself by installing binary oppositions–i.e., norms of law/norms of the realization of law,  constituent power/constituted power, norm/decision–within he body of law, Agamben defines Schmitt’s state of exception “as the place where the opposition between norm and its realization reaches it greatest intensity. It is a field of juridical tensions in which a minimum of formal being-in-force [vigenza] coincides with a maximum of real application, and vice versa” (36).

In such extreme situations where the norm is in force but not applied, and acts that lack the value of law acquire their force “the force of law”, those decrees that executive power is authorized to issue in exceptional situations which possess the force of law:

Floats as an indeterminate element that can be claimed both by the state of authority (which acts as a commissarial dictatorship) and by a revolutionary organization (which acts as a sovereign dictatorship). The state of exception is an anomic space in which what is at stake is a force of law without law (which should therefore be written: force-of-law).6 Such a force of law, in which potentiality and act are radically separated, is certainly something like a mystical element, or rather a fictio by means of which law seeks to annex anomie to itself (38-9).

Throughout this chapter Agamben makes a very subtle argument about the relationship between law and reality–between language and reality–which exploits binary oppositions of legal discourse such as norm/application. For now it is enough to consider the distinction between norm and application. The key point here is to understand that Agamben regards the abstract (“universal”) norm and there sphere of its practical application as two conceptually distinct, radically unbridgeable concepts. Let’s look at a contemporary example. One norm of Canadian public law has is that the law should be interpreted in a manner that respects rights. In certain instances the norm’s application seems to flow effortlessly from the norm (e.g. […]). In other instances, however, it is perfectly obvious that the norm’s application is not fundamentally connected to the norm itself (e.g., the prioritization of the citizens’ to security over the individual’s liberty rights). The centerpiece of Agamben’s theory of the state of exception is its assertion that the application of the norm necessarily involves an arbitrary decision. Secretly nestled between the abstract universal norm and its concrete application, therefore, is the ephemeral decision which vanishes into thin air just as quickly as it is enunciated (norm-decision-application). This arbitrary, and indeed sovereign decision, is in turn premised on the particular interpretation given to it by the adjudicator in light of the unique circumstances of the case and their own individual biases and beliefs about law and world. The application of the abstract norm to a particular case, requires the temporary suspension of it–that is, the production of an exception–so that it can be applied to the singular situation which exceeds the abstract norm (40). As Gadamer observed, if the application of the norm was contained within and derivable from the abstract norm “there would have been no need to create the grand edifice of trial law” (40). Besides functioning to legitimize the autonomous moment of the decision, the trial also serves to construct a referential relationship between the law and reality which in turn “is guaranteed by institutional power” (40). This ritualized process whereby the abstract norm is brought to bear on something that is totally external to it–i.e., the trial–is necessary since the relationship between language and reality, much like the relation between norm and application is, at root, arbitrary. Let’s consider the example of how the law, which is an abstraction much like the norm, comes to refer to the empirical world and acquires it legitimacy. Just as langue, the abstract system of rules and conventions signifying a sign system, only acquires denotative meaning through specific signifying practices the intelligibility of which require language, the norm can only to refer to a concrete segment of reality (i.e., “the normal situation”) through its suspension in the state of exception (36). Agamben argues that “necessity” is the result of the law’s loss of reference to reality (chapter 1) and that the concrete suspension of the sphere of the norm’s application creates the conditions where the norm can once again apply7.  In this way, the state of exception can be understood as the strategy through which law comes to “refer” to concrete reality8. The passage from langue to parole (or from the semiotic to the semantic), which represents the movement from a generic proposition (with an abstract or virtual reference to the empirical world) to a generic proposition with its (apparently) concrete reference to the empirical world, is practical activity that concerns the actual relation of language and world. As we will see in chapter 4, the relationship between law and reality characteristic of the modern Western nation-state is applied in a way that denies the existence of a reality external to its abstract empire and in this way molds and curtails what is in fact politically possible.

In Chapter 4, “Gigantomachy Concerning a Void,” Agamben definitely states what is at stake in Schmitt’s theories on the state of exception and sovereign power: a sphere of action entirely removed from the law. This argument is advanced through a reconstruction of the debate between Benjamin and Schmitt over the relationship of anomic violence to the juridical order9.

Benjamin’s famous essay, “The Critique of Violence” (1921), advances the idea of “reine Gewalt10” (i.e., pure violence/power) existing outside the law’s empire. Its function is to depose11 the dialectic between lawmaking and law-preserving violence and in so doing establish a new historical epoch. Agamben casts Schmitt’s theories of the state of exception and sovereignty as a response to Benjamin’s pure violence. For Schmitt, pure violence is impossible since the purpose of the sovereign decision is to subsume pure violence under the juridical order through the state of exception12 13 (54).

Benjamin’s description of the “baroque sovereign14”, Agamben contends, is a response to Schmitt’s theorization of sovereignty and its exclusive prerogative. While Schmitt’s sovereign constitutes itself and enacts its own transcendence by deciding on the state of exception–such that the sovereign decision can be understood as the ground that fuses sovereignty and the state of exception–Benjamin’s baroque sovereign15–which has shed all relation to divine transcendence–is faced with the profane task of excluding the exception16 17 and is constitutively incapable of rendering a decision on the exception: “The sovereign, who should decide every time on the exception, is precisely the place where the fracture that divides the body of the law becomes impossible to mend: between Macht and Vermogen, between power and its exercise, a gap opens which no decision is capable of filling” (56). The repercussions of Benjamin’s redefinition of the sovereign function are evident in Agamben’s approach to the state of exception. The sovereign’s inability to decide, excludes the state of exception the from the realm of sovereign jurisdiction where it no longer appears, as Schmitt would have it, “at the threshold that guarantees the articulation between inside and outside, or between anomie and juridical context, by virtue of a law that is in force in its suspension” (57). Rather, Agamben’s state of exception is “a zone of absolute indeterminacy between anomie and law” (57).

Benjamin’s 8th theses on the concept of history reads: “The tradition of the oppressed teaches us that the ‘state of exception’ in which we live is the rule. We must attain a concept of history that accords with this fact. Then we will clearly see that it is our task to bring about the real state of exception […]” (1942). The assertion that the “state of exception has become the rule18” evokes the understanding of the state of exception as a zone of absolute indeterminacy. This uncertainty is devastating for Schmitt’s theory since: “From Schmitt’s perspective, the functioning of the juridical order ultimately rests on an apparatus–the state of exception–whose purpose is to make the norm applicable by temporarily suspending its efficacy” (58). Consequently, when the exception becomes the rule, the technique through which law acquires its legitimacy looses its functionality (58). In this sense, the “real state of exception19”, that anomic zone where “violence without any juridical form acts” unmasks the attempt of “state power to annex anomie through the state of exception” as a “ fictio iuris par excellence, which claims to maintain the law in its very suspension as force of law. What now takes its place are civil war and revolutionary violence, that is, a human action that has shed [deposto] every relation to law” (59).

The precise relation between law and violence within this anomic zone is precisely what is at issue in the debate between Benjamin and Schmitt. “While Schmitt attempts every time to reinscribe violence within a juridical context, Benjamin responds to this gesture by seeking every time to assure it–as pure violence–an existence outside of the law” (59). In the same way that the “battle of giants concerning being [Nietzsche] is decisive for Western metaphysics, this “struggle for anomie” is decisive for Western politics (59). As the ultimate metaphysical stakes, pure violence, Agamben argues, is the analog to pure being and/or existence and “the strategy of exception” which functions to secure the relation between anomic violence and law is the analog to the “onto-theo-logical strategy aimed at capturing pure being in the meshes of the logos” (60).

Everything happens as if both law and logos needed an anomic (or alogical) zone of suspension in order to ground their reference to the world of life. Law seems able to subsist only by capturing anomie, just as language can subsist only by grasping the nonlinguistic. In both cases, the conflict seems to concern an empty space: on the one hand, anomie, juridical vacuum, and, on the other, pure being devoid of any determination or real predicate. For law, this empty space is the state of exception as its constitutive dimension. The relation between norm and reality involves the suspension of the norm, just as in ontology the relation between language and world involves the suspension of denotation from langue. But just as essential for the juridical order is that this zone–wherein lies a human action without relation to the norm–coincides with an extreme and spectral figure of the law, in which law splits into a pure being-in-force [vigenza] without application (the form of law) and a pure application without being in force: the force of law (60).

That the law (broadly understood as the entire juridical order as such which includes written law, etc.,) and logos (broadly understood as the desire for an ultimate principle of truth that grounds meaning) can only refer to the lifeworld by virtue of anomic zone of suspension (anomie, or the nonlinguistic), and that pure being (and the possibility of human action without relation to the norm) is indefinitely detained within this chasm implies, Agamben correctly observes, that the structure of the state of exception is infinitely more elaborate than was previously assumed. “Pure violence–as human action that neither makes nor preserves law–is not an originary figure of human action that at a certain point is captured and inscribed within the juridical order […]. It is, rather, only the stake in a conflict over the state of exception, what results from it and, in this way only, is supposed prior to the law20” (60).

But what, precisely constitutes the “purity” of “pure violence” [reine Gewalt] ? And how can it be distinguished from the force of law? Agamben argues that the purity of Benjamin’s pure violence is externally determined by the means-end relation of law to justice characteristic of the existing constitutional order of the state (61). The purity of pure violence, in other words, is is a product of its evaluation of mythico-juridical violence which as “a means for making law never deposes its own relation with law and thus instantiates law as power21 (Macht)” (Benjamin 1921, 198/248) (From Agamben, 61). Pure violence, in this sense,  “manifests” itself “only as the exposure and deposition of the relation between violence and law22” (62) and in this way functions, contra the force-of-law, as a pure means without any relation to an end. However, the criterion of the between the force-of-law and pure violence, Agamben contends following Benjamin, “lies in the dissolution of the relation between violence and law” and the establishment of a new historical epoch (63). Agamben hypothesizes that law that exists in this new historical epoch, is a law that lacks force and/or application23.

The decisive point here is that the law–no longer practiced, but studied–is not justice, but only the gate that leads to it. What opens a passage toward justice is not the erasure of law, but its deactivation and inactivity [inoperosita]–that is, another use of the law. This is precisely what the force-of-law (which keeps the law working [in opera] beyond its formal suspension) seeks to prevent (64).

Agamben develops his theses about the state of exception as a juridical void and pure violence and the possibility of a new historical epoch by tracing the contemporary form of the state of exception and to its paradigmatic articulation as iustitium during the Roman Republic and Empire and establishing its relationship to a dialectic between authority (auctoritas) and power (potestas) which converges under the figure of the absolute sovereign  (Chapter 3, 5 and 6).

In Chapter 3, “Iustitium”, Agamben examines the “authentic, but more obscure, genealogical paradigm” of the modern state of exception [Ausnahmezustand] in Roman law: the iustitium (48). “Upon learning of a situation that endangered the Republic, the Senate would issue a senatus consultum ultimum [final decree of the senate] by which it called upon the consuls24 […] and even, in extreme cases, all citizens, to take whatever measures they considered necessary for the salvation of the state” (41). The foundation of this senatus consultum, Agamben contends, was a decree proclaiming an emergency situation caused by foreign war, insurrection, or civil war (i.e., tumultus) which often lead to the declaration of a suspension of law as such (i.e., iustitium) and thus produced a “juridical void”  (41-2). Drawing from Nissen, Agamben asserts that there is a systematic connection between the senatus consultum ultimum, the declaration of tumultus, and the iustitium in which “the consultum presupposes the tumultus and the tumulus is the sole cause of the iustitium” (46). The iustitium, stated differently, responds to necessity. It suspends the juridical order where the law looses its ability to guarantee social order25 (46). “Because it brings about a standstill and suspension of the entire juridical order” (47), the state of exception is best understood, as a “kenomatic state, an emptiness and standstill of the law” (48). Consequently, any acts committed during the iustitium are “radically removed from any juridical determination26” since they are produced in a juridical void (50). Hence, “if we wanted at all costs to give a name to a human action performed under the conditions of anomie, we might say that he who acts during the neither executes nor transgresses the law, but inexecutes [inesegue] it. His actions, in this sense, are mere facts, the appraisal of which, once the iustitium is expired, will depend on the circumstances. But, as long as the iustitium lasts, they will be absolutely undecidable, and the definition of their nature–whether executive or transgressive and, in the extreme case, whether human, bestial, or divine–will lie beyond the sphere of law” (50).

In Chapter 5, “Feast, Mourning and Anomie”, Agamben analyzes the shift in the meaning of  the term iustitium after the birth of the Roman Empire where it became associated with the time of institutionalized chaos between the death of an emperor and the inauguration of a successor (65-66). Turning to Fraschetti (1990),  Agamben argues that these two articulations of iustitium are connected insofar as they are situated within context of social and political uncertainty (i.e., tumult). However, although the “original nexus between tumultus and iustitium is still present”, during the Roman Empire, the state of exception and anomie are embodied in the sovereign “who begins to free himself from all subordination to the law and assert himself as legis solutus [unbound by the laws]” (69). The anomic character of this new figure of supreme power, the sovereign as living law, is evident in the eponymous neo-Pythagorean theory of the sovereign27 (basileus nomos empukhos) which finds its analogy in the modern theory of sovereignty (69). This representation of the sovereign as living law implies that the sovereign is unbound by the law, “that in him the life of the law coincides with a total anomie” (69). As living law, the sovereign, with its “irresponsible power”, is akin to a “god among men” (69). However, because the sovereign as living law and thus identified with it:

He is held in relation to it and is indeed posited as the anomic foundation of the juridical order. The identification between sovereign and law represents, that is, the first attempt to assert anomie of the sovereign and, at the same time, his essential link to the juridical order. The nomos empsukhos [living law] is the original form the nexus that the state of exception establishes between and outside and an inside of the law (69-70).

The connection between iustitium and mourning, according to Agamben, reveals its “true meaning” within this context:

If the sovereign is a living nomos, and if, for this reason, anomie and nomos perfectly coincide in his person, then anarchy (which threatens to loose itself in the city upon the sovereign’s death, which is to say, when the nexus that joins it to the law is severed) must be ritualized and controlled, transforming the state of exception into public mourning and mourning into iustitium. Corresponding to the undecidability of nomos and anomie in the living body of the sovereign is the undecidability between state of exception and public mourning in the city. Before assuming its modern form as a decision on the emergency, the relations between sovereignty and state of exception appears in the form of an identity between the sovereign and anomie. Because he is a living law, the sovereign is intimately anomos (70).

The relationship between anomie and law is also evident, Agamben maintains, in the anomic feasts of the classical world28 which are characterized by “unbridled license and the suspension and overturning of the normal legal and social hierarchies” and, in this way, break with and temporarily subvert the social order (71). Drawing from Meuli, who argued that the state of emergency is the anomic drive of the nomos (72), Agamben argued that “the anomic feasts point toward a zone in which life’s maximum subjection to the law is reversed into freedom and license” and “the real state of exception as the threshold of indifference between anomie and law” (73).
In showing the mournful character of every feast and the festive character of all mourning, law and anomie show their distance and, at the same time, their secret solidarity. It is as if the universe of law–and more generally, the sphere of human action insofar as it has to do with the law–ultimately appeared as a field of forces traversed by two conjoined and opposite tensions: one that goes from norm to anomie, and another that leads from anomie to the law and the rule. Hence, a double paradigm, which marks the field of law with an essential ambiguity: on the one hand, a normative tendency in the strict sense, which aims at crystalizing itself in a rigid system of norms whose connection to life is, however, problematic if not impossible (the perfect state of law, in which everything is regulated by norms); and, on the other hand, an anomic tendency that leads to the state of exception or the idea of the sovereign as living law, in which a force-of-law that is without norms acts as the pure inclusion of life (73).

In light of the irreducible ambiguity that such feasts dramatize, the relation between law and life, reveals itself as the primary stake in the dialectic between anomie and law (73).

In Chapter 6, “Auctoritas and Potestas”, Agamben refines his theory of the state of exception through a critical analysis of the relation between auctoritas29 (authority) and potestas30 (power) in the Roman Republic and Empire. In order to clarify the meaning of this relationship, Agamben first turns to the sphere of private law where the authority is the property of the the auctor who intervenes in order to confer legal validity31 on to the act of a subject that has power but lacks the capacity to create a legally valid act32 (76). At the theoretical level, this empirically observed relationship between authority and power suggests, according to Agamben, that the existence of something within the legal sphere necessitates the construction of a relational bridge between two subjects33 (e.g., emperor and magistrate) or elements (authority and power) (76). If there is a gap between “the one endowed authority” and the one endowed with power who “takes the initiative in the act in the strict sense”, “the act must be completed with auctoritas in order to be valid” (76). In this sense, the “perfect legal action” consists of a duality of subjects/elements–that is, authority and power–which are conceptually distinct yet comprise a binary system that functions to convey judicial validity or legitimacy onto human action (78).

Turning to the Roman Republic, Agamben examines the “extreme figure of authority” that arises in relation to the senatus consultum ultimum and the iustitium which suspends the juridical order (78-9). In this context, “authority seems to act as a force that suspends power where it took place and reactivates it where it was no longer in force. It is a power that suspends or reactivates law, but is not formally in force as law” (79). Agamben also traces this relation of exclusion and supplementation between authority and power to another institution, the hostis iudicatio, which likewise reveals figure of authority’s specific function: suspending the law where it looses it grasp on reality.  In exceptional situations, the Senate had the authority to declare a Roman citizen that threatened the security of the Republic “public enemy” (i.e., hostis). This suspension of the status of Roman citizen (i.e., ius civis) was potentially devastating for the hostis since it amounted to the radical deprivation of their legal status such that s/he could be stripped of property or life (80). This particular example, Agamben argues, reveals the essence of authority: it is a “power [potenza] that can at once ‘grant legitimacy’ and suspend law34” (80).

The clearest explication of authority, Agamben argues, is located in the passage35 of the Res Gestae Divi Augusti where “Augustus claims authority as the foundation of his status as princeps36” (81). The relevant passage of the famous funerary inscription reads: “After that time I [Augustus] surpassed all in authority, although I had no more power than those who were my colleagues in each magistracy” (81). The key point of interest for Agamben is that the first Roman emperor “defines the specificity of his constitutional power […] in the vaguer terms of an authority” (81). Turning to the 13 January 27 BCE edict wherein Augustus defined himself as auctor of the highest standing and declared his intention to restore the republican constitution, Agamben explains precisely how Augustus “surpassed all in authority”. In this context, auctor takes on a precise legal meaning in relation to the transfer of the res republica from his hands to those of the people and the senate. Here, Augustus stands as as the “auctor [or guarantor] of the rights rendered to the people and the Senate” (82). As a result, authority appears bound to Augustus. “It constitutes him as auctor of the highest standing, as he who legitimates and guarantees the whole of Roman political life” (82).

Since the time of the Roman princeps, Agamben argues, modern scholars have fictitiously theorized authority as a characteristic which “inheres immediately in the living person of the sovereign” (83-4). Such theorizations are fictitious because the authority so described only acquires its appearance “from the suspension or neutralization of the juridical order–that is, ultimately, from the state of exception” (85). In this sense, “what was clearly an ideology or a fictio intended to ground the preeminence of […]authority in relation to power” has thus become “a figure of law’s immanence to life” (84). This modern theory of authority, Agamben thus claims, entails a forceful affirmation of “law’s claim that it coincides at an eminent point with life”.  In this way, this theory converges with “the tradition of juridical thought that saw law as ultimately identical with–or immediately articulated to–life” wherein life-itself grounds the validity of the norm as well as its content (85). Hence, that law and life are tightly bound in a reciprocal grounding such that law can only acquire its meaning in relation to life (and vice versa), is expressed in the dialectic of authority and power: “The norm can only be applied to the normal situation and can be suspended without totally annulling the juridical order because in the form of authority, or sovereign decision, it refers immediately to life, it springs from life” (85).

In the final pages of his treatise, Agamben draws some provisional conclusions from his investigation of the state of exception. The Western juridical system is held together by two elements: 1) a normative and juridical (power) and 2) an anomic and metajuridical (authority) (86). Within this dual structure that characterizes the Western juridical system, the normative element requires the anomic element for its application just as the validation and/or suspension of power is the only way in which authority can assert itself. However, because it emerges out of  the dialectic between authority and power “the law is fragile and, in straining to maintain its own order, is always already in the process of ruin or decay” (86).  To borrow Benjamin’s terms, because the dialectic of lawmaking and law-preserving power (a process that tries to wholly regulate life under law) necessitates the state of exception in order to establish the sphere of its dominion,  the life of the law is incontrovertibly finite and exists in a permanent state of flux. By constructing a zone of undecidability between “anomie and nomos, between life and law, between authority and power”  the state of exception at once articulates and binds the normative and anomic elements constitutive of the juridico-[bio]political machine. The dialectic between authority and power will continue to function insofar as authority and power “remain correlated yet conceptually, temporally, and subjectively distinct (as in republican Rome’s contrast between the Senate and the people […])” (86).  However, as our time reveals, a potentially lethal situation can arise, however, where power and authority merge in one person and/or institution37. In such contexts where the state of exception becomes the rule,  “the normative aspect of law can […] be obliterated and contradicted with impunity by a governmental violence that–while ignoring international law externally and producing a permanent state of exception internally–nevertheless still claims to be applying the law” (87). Although deliverance from the state of exception in which we live to a state of law is impossible, it is possible, Agamben concludes, to reveal the central fiction of the juridico-biopolitical machine since between violence/law and life/norm no substantial articulation exists (87). Because two opposite forces are unleashed within the state of exception–i.e., the force of law (the authority which institutes and makes law) and pure violence (the power which deactivates and deposes law)–alongside the movement that seeks to annex life-itself to law’s empire “there is a countermovement that, working in an inverse direction in law and life, always seeks to loosen what has been artificially  and violently linked” (87).